“The Privacies of Life”: Cellphone Searches, Court Confusion, and Public Misconception in the Post-Riley Era

By: M. Claire Donnelly

The landmark decision of the summer, that has since thrown both police departments and technology companies into frenzy, was the unanimous Supreme Court decision in United States v. Riley.[1]  The highest Court in our nation made clear: “[o]ur answer to the question of what police must do before searching a cellphone seized incident to arrest is accordingly simple—get a warrant.”[2]  The Court reasoned that even though cellphones are hand-held objects, they are not less worthy of the protections of the Fourth Amendment that our Founders fought diligently for—to protect from “the privacies of life.”[3]  Riley, which upholds one of our most fundamental rights as citizens, has led to a  debate between civil rights groups, law enforcement agencies, and technology companies regarding privacy.  In addition to this debate, and in light of the Snowden leaks, the public is unaware of its privacy concerning technology.

As Riley made its way up the pipeline, commentators were not so sure how the Court would rule.  Although Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protects everyone from arbitrary or unlawful interferences with their “privacy, family, home, or correspondence,” the law upholding the right to privacy has struggled to respond to new technology.  Since the decision, Riley has impacted every cellphone user in our nation, which just so happens to be roughly 90% of American adults as of January 2014.[4]  Most of these users’ phones—58%—are smartphones.[5]  Every one of these cellphone owners is impacted in the way our government invades this now “private” area.

The impact did not end just there.  Riley has also impacted every technology company introducing new products that are touted to have the best encryption methods yet.  In September, Apple released that their new privacy policy does not allow for the company to bypass an individual cellphone user’s password.  Prior to this release, Apple was able to unlock cellphones for the police, and since this change the company has received public backlash from the FBI and law enforcement agencies.  The Director of the FBI, James Comey, attacked Apple and Google, who followed Apple’s lead, by saying the companies are “market[ing] something expressly to allow people to place themselves beyond the law.”  The FBI has since requested secret “backdoor” accessibility, unknown to the public.  Civil rights groups, however, have criticized this suggestion by arguing that once a backdoor is created, hackers and foreign governments will “come knocking.”[6]  In addition, these groups argued, “the government has never had access to everything, and it shouldn’t.”  Seems similar to the Court’s ruling.

Photo credit of coptubeamerica.com.

Photo credit of coptubeamerica.com.

Post-Riley, lower courts are now grappling with many other issues surrounding cellphones.  One such issue, which has been emerging as a “prime battleground” post-Riley, is cell site information, which is the data gathered from location-sensing technology on a cellphone.  Notably, two weeks before Riley was issued, the United States Court of Appeals for the Eleventh Circuit ruled on cell site information, also referred to as “metadata.”  The Eleventh Circuit rejected law enforcement’s practice of tracking a suspect under this method without a warrant because the information is within the cellphone owner’s reasonable expectation of privacy.  Soon after, in light of Riley and the Eleventh Circuit, the Northern District of California denied law enforcement’s “longstanding practice” of obtaining cellphone location information.

Another main issue that has arisen is evidenced by a district court in Virginia Beach, Virginia, that just ruled on the new iPhone 6 encryption software, Touch ID.  The court held that the new encryption, which allows the user to access the contents of his phone via fingerprint touch rather than inputting a password, is not protected in the same way that a password is under the Fifth Amendment’s prohibition on self-incrimination in a criminal proceeding.  The court reasoned that unlike compelling a password, which violates the Fifth Amendment because it requires a defendant to divulge the contents of his mind, a fingerprint is akin to a DNA sample or handwriting, which the law permits.[7]  These are not the only issues that have judges considering the impact of Riley in their rulings, however.  As judges decide cases on searches of student cellphones, photographs seized from a cellphone of a court observer, and photographs seized off a phone incident to arrest, they are considering the powerful words of the Court in Riley: “get a warrant.”  By categorizing these handheld objects as deserving of this privacy, subsequent issues that arise from cellphones must adhere.

As more and more issues arise, recent reports are highlighting unlawful government surveillance with regards to cellphones other than opening the phone itself or collecting the phone’s metadata.  For example, National Public Radio (NPR) recently reported on the use of “Stingrays” and “ISMI catchers,” which mimic a cell phone tower and intercept cellphone signals.  The American Civil Liberties Union (ACLU) requested records from one police department in Florida suspected of using this type of surveillance technology.  However, federal agencies swooped in and destroyed or got rid of the technology, and provided no information on the matter.  Similar requests have been made by thirty-four ACLU affiliates, who filed over 375 requests.  According to the Riley ruling, these tactics should require warrants, absent exigent circumstances.

Another recent scandal in the media occurred in October after FBI Director Comey commented on the public misconception and hurdles of surveillance technology.  He stated:

“In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications.  That is not true.  And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals…  Some believe that the FBI has these phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch.  It may be true in the movies or on TV.  It is simply not the case in real life.”

Similar to the Riley Court, Comey acknowledges the importance of privacy protection in the everyday person’s cellphone and the need to have a firm standard.  However, as the above cases and reports demonstrate, law enforcement is abusing this privacy standard.  Law enforcement must adapt prior policies and change its ways in order to comply with this standard.

Locally, the Charlotte-Mecklenburg Police Department (CMPD) has reported to be adapting their policies, which are currently contrary to the law post-Riley.  Prior to Riley, investigators obtained cellphone information incident to arrest without a warrant.  CMPD Detective Brent Foushee, who has been with the department twenty-six years, said the Court’s decision in Riley “turned this [practice] on its head.”  In addition, he said that about half of his suspects in custody consent to the search of their cellphone, which under the law—even under Riley—is lawful because of the voluntary consent.

Technology companies and law enforcement may be making efforts to conform to Riley, but with these changes comes more problems.  Moreover, courts have not yet caught up with already-existing technology.  How will they be able to catch up with technology in the works?  And how will technology companies and law enforcement efficiently adapt with each change in the law?  Furthermore, as CMPD demonstrates, there are still lawful ways to get around the privacy standard upheld in Riley.  This is not an easy process.

Law enforcement, the judicial system, and the public are all struggling to understand the law in regard to cellphones.  While the Supreme Court has recognized the importance of privacy in this area, implementation of that privacy and creating a fine line for where that privacy begins and ends is unclear.  One thing is for certain, however: the Court has recognized—in a unanimous decision—that it is unlawful to conduct a warrantless search of a cellphone.  Subsequent cases regarding cellphone technology must follow this ruling.

[1] Riley v. California, 134 S.Ct. 2473 (2014)(United States v. Wurie was combined with similar case Riley, and they were argued and decided together).

[2] Id. at 2495.

[3] Id.

[4] http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/

[5] Id.

[6] https://www.aclu.org/blog/national-security-technology-and-liberty/securing-our-data-should-come-first.  Academia in the field is also shooting down Comey’s suggestion, as Columbia University science professor Steven Bellovin said, backdoors are “a disaster waiting to happen.”

[7] See also Keeping the Government Out of Your Smartphone, where Chris Soghoian, Principal Technologist and Senior Policy Analyst at the ACLU warned: “screen unlock patterns are not your friend.” And see Apple’s Fingerprint ID May Mean You Can’t Take the Fifth, where Marcia Hofmann, a boutique lawyer focusing on computer security, a former staff attorney at the Electronic Frontier Foundation, and adjunct professor at U.C. Hastings College of Law, warned of the legal effects of moving from pin to fingerprint.

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